How much reliance can be placed on a witness’s memory? Mary Young & Laurence Clarke consider the challenges of determining truth & credibility in evidence
- Judicial commentary shows that judges are aware of the fundamental fallibility and unreliability of memory when considering evidence from witnesses.
- CPR PD 57AC was introduced nearly four years ago and implemented a process of record-keeping to encourage compliance with the rules around preparation of trial witness statements.
Just as a witness’s accurate recollection can be pivotal to the success of a case, so too can issues to do with honesty of accounts and the fallibility of memory be detrimental to case outcomes. These are not only matters for a judge to consider, but are also important for litigators to be aware of when preparing witness statements, and which the most recent rule revisions have sought to address.
Memory & judicial commentary
Mr Justice Leggatt, as he then was, in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) made a number of observations on memory and recollection, which
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